Sunday, January 7, 2018

Trump Plays Fast and Loose With 1st Amendment

      The staff assistant assigned to brief presidential candidate Donald Trump on the U.S. Constitution is reported to have gotten only as far as the Fourth Amendment before Trump's attention flagged, according to the account in the tell-all book Fire and Fury by journalist Michael Wolff. "I got as far as the Fourth Amendment," Sam Nunberg is quoted as saying, "before his finger is pulling down on his lip and his eyes are rolling back in his head."
      Apparently, Trump's attention was wandering even earlier. His actions as candidate and as president demonstrate that he lacks any understanding of the First Amendment —  at least, the prohibition against abridging the freedom of the press.
      The most recent evidence of Trump's ignorance of, or indifference toward, freedom of the press comes from his lawyer's letter [Jan. 3] threatening a lawsuit to try to ban Wollf's book. Charles Harder, the Beverly Hills lawyer in the lawsuit that put the gossip site Gawker out of business, warned the Henry Holt publishing house on Trump's behalf of a possible suit to prevent publication of the book because of allegedly libelous material about Trump.
      Harder had sent a similar cease-and-desist letter to ex-Trump aide Stephen Bannon the day before, threatening the fired White House adviser with legal action for allegedly violating a nondisclosure agreement signed before signing up with the Trump campaign. Bannon is quoted extensively in Wolff's book with sharp criticisms of the man he helped install in the Oval Office.
      Both letters, written presumably with Trump's knowledge and approval, play fast and loose with the First Amendment's protections for freedom of speech and freedom of the press. The enforceability of nondisclosure agreements is a recurrent and somewhat murky issue in employment and trade secret law. The judicial precedents against prior restraints, on the other hand, are well established and well known and leave no room for courts to ban a book or a newspaper story except in the most extraordinary circumstances.
      Legal journalist Colin Kalmbacher summarized the major decisions in commentary published on Dan Abrams' legal news site Law and Crime. Recapping from Media Law 101, Kalmbacher recalled that the Supreme Court first extended the First Amendment to state governments in a decision, Near v. Minnesota (1931), that struck down a local ordinance prohibiting the publication of a "malicious, scandalous, or defamatory newspaper."
      Trump's displeasure with Wolff's book parallels the history in Near. The case originated with an effort by Minneapolis officials in 1927 to invoke what was called the "Minnesota Gag Law" to shut down The Saturday Press, a muckraking rag published by the openly anti-Semitic J.M. Near. The local judge issued an order ordering the newspaper to suspend publication, an order that the Minnesota Supreme Court upheld.
      As a First Amendment hero, Near falls far short of the ideal, but the U.S. Supreme Court's decision in his favor is a landmark in First Amendment law and a shield for all who claim its protections against government censorship. Writing for the 5-4 majority, Chief Justice Charles Evans Hughes said that the First Amendment allows a court-imposed prior restraint only if the publication would reveal critical military information, amount to obscenity, or directly incite violence.
      Kalmbacher noted a second precedent: the 9-0 decision in Nebraska Press Ass'n v. Stuart (1976) that threw out a judge's order prohibiting coverage of a high-profile murder trial. Oddly, Kalmbacher skipped over the more applicable precedent five years earlier in the Pentagon Papers case. The 6-3 decision in New York Times v. United States (1971) rejected the Nixon administration's effort to prevent the Times and the Washington Post from publishing excerpts of the classified study of Vietnam War policymaking.
      Those precedents leave no room whatsoever for Trump or his lawyer to block publication of Wolff's book even if the still unspecified defamatory statements meet the stringent "actual malice" standard of the earlier precedent, New York Times v. Sullivan (1964). In any event, the publishing house responded not by cowering in fear, but by moving the book's publication date up to Friday [Jan. 5].
      Charles Tobin, a Washington, D.C., lawyer who represents media interests, similarly doubted Trump's ability to silence Bannon under the supposed nondisclosure agreement. The case law establishes that a prior restraint is allowed only if "a government interest of the highest order" is at stake, Tobin explained. "The interest of a thin-skinned president" would not meet that standard, he reasoned.
      The legal basis for Harder's letters was so weak as to raise questions why he wrote them at all. The letters, Tobin suggested, "were more about public image and political grandstanding than legal merit." By week's end, Trump had sued neither Bannon nor Henry Holt. Several news stories noted Trump's penchant for threatening to file legal actions without ever actually filing them.
      Legal bluster may be part of the game for real estate developers or TV celebrities, but Trump is no longer private citizen. As president of the United States, he took an oath to "preserve, protect, and defend" the Constitution of the United States, including the First Amendment. Wolff's book summed up the views of many in Trump's circle that he was and remains unfit for the office. Day by day, tweet by tweet, Trump proves his critics to be right, whether they are inside or outside the White House.

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